City mulls steps after appeals win for Ellison

Judgment could cost city about $225,000

By Gary Abernathy - gabernathy@civitasmedia.com

Ellison

An Ohio appeals court last week upheld a lower court judgment in favor of former Zink administration assistant Kirby Ellison, and Hillsboro city officials this week were considering options in a case that could cost the city $225,000 in back pay and benefits.

The case centers on whether Ellison was a classified, civil service employee, or an unclassified “at will” employee serving at the pleasure of the mayor when she was dismissed from her job in January 2012 when the Hastings administration took over following the 2011 election.

City officials say they believed at the time of her dismissal that Ellison was an unclassified employee because Ralph Holt, safety and service director during the Richard Zink administration, had indicated he had moved Ellison from classified to unclassified status back in 2004.

Initially, Hillsboro’s Civil Service Commission sided with the city in the dispute, but the commission’s decision was reversed by Judge Dale Crawford in Highland County Common Pleas Court in a ruling last October. Crawford found that Ellison was a civil service employee at the time of her dismissal in 2012 even though Holt said in 2004 that he was moving her from classified to unclassified status.

Crawford ordered the city to re-employ Ellison “with appropriate back pay.” The city appealed, and last week Ohio’s Fourth District Court of Appeals upheld Crawford’s ruling.

Despite Holt’s stated intent to do so, moving Ellison from classified to unclassified status was apparently never formally enacted, according to the court. Holt later acknowledged that he “had no government experience and that he did not know about civil service distinctions between classified and unclassified service,” according to testimony contained in the appeals court decision.

In the initial court decision, Crawford had ruled that even though Holt said he intended to move Ellison to unclassified status, “the appointment was never placed in a journal at the Civil Service Commission… nor was the letter of appointment accompanied by a statement showing the fiduciary duties of the position.”

The appeals court found that new arguments made by the city in their appeal might have merit, but they could not be considered because they were not raised with the common pleas court.

Gary Lewis, the city auditor, said Monday that Ellison was paid about $43,000 a year. Including retirement and other benefits, the city would owe about $225,000 if the judgment stands, he said.

City Law Director Fred Beery is a witness in the case and did not handle the city’s appeal. The city was represented by labor and employment attorney Jonathan Downes of Columbus. Ellison was represented by workers comp attorney Henry Arnett of Columbus.

Downes said Monday the city is considering three options – filing a motion for reconsideration with the appeals court, appealing to the Ohio Supreme Court, or accepting the decision.

Downes said a motion for reconsideration “doesn’t come up very often,” but he believes the case might merit such a move. He said the appeals court “did a thorough job of discussing the case,” but there may still be “a question of law” regarding the “factual or legal questions” as they apply to Ellison’s status as a classified or unclassified employee at the time of her dismissal.

Arnett, Ellison’s attorney said Monday that the court affirmed what Ellison has always claimed. He said he hopes that after two court decisions the city will accept the judgment. He said that in addition to the back pay and benefits, Ellison is interested in having her employment restored, as the courts have also ordered in their judgments.

When Hastings took office in January 2012, he appointed Richard Giroux as safety director. On Jan. 3, 2012, Giroux wrote to Ellison, saying that her “services for the City of Hillsboro will no longer be required as of today.”

That same day, according to records, Ellison wrote to the Hillsboro Civil Service Commission, asking the commission to review her termination. “I believe this action was premature and did not take into account any of the civil service requirements for termination of an employee,” she wrote.

Ellison was hired by the city in 1995 as an administrative assistant in the classified civil service. When Zink became mayor in 2004, he appointed Holt as safety and service director.

“The undisputed testimony was when Holt took his position he wanted to give Appellant more money… but didn’t want to put her position in jeopardy,” the original court decision states.

According to a 2004 letter from Holt to the Hillsboro Civil Service Commission, Ellison had served in a classified position as a grant writer until May 1, 2004. At that time, according to Holt’s letter, he announced that he would be “appointing Kirby Ellison from the Classified – Administrative Assistant II/Grant Writer position she presently holds to an unclassified position as an administrative assistant I/grant writer to partially replace Rebecca Creamer in the unclassified service, serving at the pleasure of the mayor.”

In overturning the Civil Service Commission decision, Judge Crawford ruled that Holt had “made an appointment for the Mayor… which he has no authority to do, the appointment was never placed in a journal at the Civil Service Commission… nor was the letter of appointment accompanied by a statement showing the fiduciary duties of the position.”

Crawford added, “Other than Mr. Holt’s statement in his March 23, 2004 letter… that the position is unclassified, there is no evidence that Appellant’s position from which she was terminated was a position of trust or a Rule 5-06 secretary or clerk for the mayor.”